December 5th, 2008 — 10:35 pm
By Haggai Carmon
The Jerusalem District Court, (Motion 7333/04 Alan Steen et. Al v. The Islamic Republic of Iran et. Al rendered on December 4, 2008, Yosef Shapira, Judge) has ruled that although no diplomatic relations exist between Israel and the Islamic Republic of Iran, the Israeli Ministry of Foreign Affairs must serve Iran with summons regarding a pending Motion in a Jerusalem Court to enforce three foreign judgments against Iranian assets in Israel. Three plaintiffs- all U.S citizens – victims of terrorist attacks sponsored by Iran, obtained from U.S federal courts default judgments against Iran for substantial amounts. The plaintiffs are currently attempting to have the Israeli court recognize and enforce these judgments against unspecified assets they allege are held by Israel.
In order to commence with any legal proceedings, service of the pleadings must be served upon the defendant. When the defendant is a diplomat or a foreign state, Israeli law requires that service on the defendant be made by the Israeli Foreign Ministry through diplomatic channels. However, since there are no diplomatic relations between Israel and Iran, the position of the Legal Advisor to the Government (roughly equivalent to the Attorney General in many countries) was that the service cannot be made, resulting in a defeat of the effort to enforce the judgments against Iran. The Jerusalem District Court in a 52-page decision rejected the position of the Legal Advisor and ordered the Ministry of Foreign Affairs to attempt service on the Iranian Delegation to the United Nation, or on their representatives in any other international organization in which both Israel and Iran are members, or send the pleadings by mail to the Iranian government. The District Court’s decision can be appealed to the Israeli Supreme Court.
Why Does Israel Object to the Service?
Based upon previous instances where filings of claims in Israel against Iran were defeated for lack of a possibility to serve Iran, I suspect that the Legal Advisor will appeal the decision to the Supreme Court. Although not specified in the court decision, I believe that the plaintiffs aim at the substantial revenues accrued by the State of Israel from the operation of an oil pipeline jointly owned by Israel (and indirectly) by Iran in a partnership formed before the Islamic Revolution. I believe that the State of Israel who has been involved in a lengthy and complex international arbitration over these revenues wants to prevent private parties from attaching said revenues because in the arbitration, Israel is counterclaiming in an attem to offset the Iranian revenues held by Israel, against damages caused by Iran to Israel. Obviously, this is my private professional opinion not supported by the decision.
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December 5th, 2008 — 08:48 pm
By Haggai Carmon
On November 16, 2008, the Official Gazette of Israel published the new Foreign States Immunities Law -2008. The new law became effective on that date, except for cases that their hearing has begun prior to that date. The new law regulates civil lawsuits and other proceedings filed in Israeli courts against foreign states. Prior to the passage of the law, Israel followed the doctrines of customary international law. The new law does not affect diplomatic or consular immunities.
Many foreign states would find the new law to be limiting their ability to conduct their affairs in Israel as before. In particular, no labor disputes with local hire employees will be protected by sovereign immunity- that was the case in most matters prior to the passage of the law, but there were exceptions.
The new law denies sovereign immunity even in matters that international conventions and case law had determined to be protected by sovereign immunity such as termination of employment, or refusal to hire for security reasons. The law also denies immunity in lawsuits for accidental death, bodily injuries, or damage to property if the accident occurred in Israel, save for very limited circumstances. Although said torts exclusion is widely common internationally, Israel went farther and tacitly excluded immunity in lawsuits resulting from accidents involving visiting foreign military, unless there is an existing agreement between Israel and the foreign country.
However, the most damaging article which was included in the draft Bill which gave the Israeli courts an unlimited power to issue against a sovereign injunctions, mandamus, declaratory judgments and “any other remedy deemed fit by the court” – was removed, following my appearance before the Knesset’s Judiciary Committee. Many pertinent issues were still left open and are not covered by the law including reciprocity, Comity, and the most surprising omission: there is no exclusion of immunity for terror sponsoring states.
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November 27th, 2008 — 03:29 pm
By Haggai Carmon
The Tel Aviv District Court has rejected an argument by the PLO and the Palestinian Authority that they are protected by sovereign immunity from a lawsuit in torts. In a detailed decision (Civil Case 5984/07 The Palestinian Authority et al. v. Yosef Azoz (District Court for the Central Region, Dr. Ahikam Stoler, Judge), the Court has ruled that sovereign immunity cannot be granted for acts of terror and murder as they are not political acts which, under different circumstances, could bar Israeli courts’ jurisdiction. The lawsuit sought damages resulting from a terrorist attack in the Tel Aviv Sea Food Market restaurant that had left three people dead and many injured. One of the injured sued for bodily injuries he had suffered. Defendants, the Palestinian Authority, the Palestinian Liberation Organization and Marwan Bergouti moved to dismiss the lawsuit on multiple grounds, among them sovereign immunity and nonjusticiability. They claimed that they enjoyed sovereign immunity because the allegations contained in the Complaint raise governmental and political issues, and involve issues of international relations between the Palestinian Authority and the State of Israel, including Accords signed, and therefore an Israeli court lacks jurisdiction to hear the lawsuit.
The Tel Aviv Court’s decision rendered on November 23, 2008, came just under two months after the federal District Court for the District of Columbia held Syria as a state sponsor of terrorism responsible for actively supporting Al Qaeda in Iraq in the kidnapping and killing of two Americans ( Francis Gates, et al., v. Syrian Arab Republic, et al). Under a recent amendment to the American Foreign Sovereign Immunity Act (28 USC §1605 a) the Court has awarded damages against Syria although the lawsuit was originally brought under the Flatow Amendment. The Flatow Amendment did not create a private right of action against a foreign state, but only against its leaders. The new amendment to the Foreign Sovereign Immunity Act created such a right when a state is designated by the State Department as a sponsor of terrorism is sued. The new amendment makes it easier for victims of state sponsored terrorism to recover their damage, as they can now sue the sponsoring state itself rather then only its leaders. The new amendment also enables the court to award punitive damages, which are denied by the law in all other circumstances.
The issue of nonjusticiability in connection with political decisions was successfully raised by Advocate Ittai Carmon and me in a Tel Aviv Court on behalf of the United States in Aronov v. U.S, where plaintiffs attacked a U.S consul’s decision that allegedly damaged them economically. In Aronov, the court accepted the U.S argument that the alleged acts were political in nature, and therefore cannot become a subject of review by an Israeli court. The court dismissed the Complaint and no appeal has been filed.
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